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Contentious child porn legislation passes House Of Commons

The federal government’s proposed child pornography bill passed Third Reading in the House Of Commons on Jun 9 and is now in the Senate. Bill C-2 was revised during the Commons committee stage before being passed at Third Reading. Here is the current text of the bill:


First Session, Thirty-eighth Parliament,

53-54 Elizabeth II, 2004-2005

HOUSE OF COMMONS OF CANADA

BILL C-2

An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act

AS PASSED BY THE HOUSE OF COMMONS JUNE 9, 2005

SUMMARY

This enactment amends the Criminal Code to (a) amend the child pornography provisions with respect to the type of written and audio material that constitutes child pornography, and with respect to the child pornography offences, defences and penalties; (b) add a new category to the offence of sexual exploitation of young persons and make additional amendments to further protect children from sexual exploitation; (c) increase the maximum penalty for child sexual offences, for failing to provide the necessaries of life and for abandoning a child; (d) make child abuse an aggravating factor for the purpose of sentencing and direct the courts to give primary consideration to the objectives of denunciation and deterrence in sentencing for offences involving abuse of a child; (e) amend and clarify the applicable test and criteria that need to be met for the use of testimonial aids, for excluding the public, for imposing a publication ban, for using video-recorded evidence or for appointing counsel for self-represented accused to conduct a cross-examination of certain witnesses; and (f) create an offence of voyeurism and the distribution of voyeuristic material. This enactment also amends the Canada Evidence Act to abolish the requirement for a competency hearing for children under 14 years of age.

Preamble

BILL C-2

An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act

WHEREAS the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect;

WHEREAS Canada, by ratifying the United Nations Convention on the Rights of the Child, has undertaken to protect children from all forms of sexual exploitation and sexual abuse, and has obligations as a signatory to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography;

WHEREAS the Parliament of Canada wishes to encourage the participation of witnesses in the criminal justice system through the use of protective measures that seek to facilitate the participation of children and other vulnerable witnesses while ensuring that the rights of accused persons are respected;

AND WHEREAS the continuing advancements in the development of new technologies, while having social and economic benefits, facilitate sexual exploitation and breaches of privacy;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Disobeying order of court R.S., c. 19 (3rd Supp.), s. 1 R.S., c. 19 (3rd Supp.), s. 1 Exemption for accused aged twelve or thirteen R.S., c. 19 (3rd Supp.), s. 1 Sexual interference CRIMINAL CODE 1.

Subsection 127(1) of the Criminal Code is replaced by the following:

127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

2. (1) Paragraph 150.1(2)(c) of the Act is replaced by the following: (c) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant

(2) Subsection 150.1(3) of the Act is replaced by the following: (3) No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 or subsection 173(2) unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.

3. Sections 151 and 152 of the Act are replaced by the following: 151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days;

Invitation to sexual touching R.S., c. 19 (3rd Supp.), s. 1 Sexual exploitation (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of fourteen years, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days; or (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.

4. (1) Subsection 153(1) of the Act is replaced by the following: 153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.

(2) Section 153 of the Act is amended by adding the following after subsection (1):

Reasons to be stated

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

Support person – witnesses under 18 or who have a disability

486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who has a mental or physical disability, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

Other witnesses

(2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.

Application

(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings.

Factors to be considered

(3) In making a determination under subsection (2), the judge or justice shall take into account the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the judge or justice considers relevant.

Witness not to be a support person

(4) The judge or justice shall not permit a witness to be a support person unless the judge or justice is of the opinion that doing so is necessary for the proper administration of justice.

No communication while testifying

(5) The judge or justice may order that the support person and the witness not communicate with each other while the witness testifies.

No adverse inference

(6) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

Testimony outside court room – witnesses under 18 or who have a disability

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

Other witnesses

(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.

Application

(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings.

Factors to be considered

(3) In making a determination under subsection (2), the judge or justice shall take into account the factors referred to in subsection 486.1(3).

Specific offences

(4) Despite section 650, if an accused is charged with an offence referred to in subsection (5), the presiding judge or justice may order that any witness testify

(a) outside the court room if the judge or justice is of the opinion that the order is necessary to protect the safety of the witness; and

(b) outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.

Offences

(5) The offences for the purposes of subsection (4) are

(a) an offence under section 423.1, 467.11, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

Same procedure for determination

(6) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) or (4) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.

Conditions of exclusion

(7) A witness shall not testify outside the court room under subsection (1), (2), (4) or (6) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.

No adverse inference

(8) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

Accused not to cross-examine witness under 18

486.3 (1) In any proceedings against an accused, on application of the prosecutor or a witness who is under the age of eighteen years, the accused shall not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.

Other witnesses

(2) In any proceedings against an accused, on application of the prosecutor or a witness, the accused shall not personally cross-examine the witness if the judge or justice is of the opinion that, in order to obtain a full and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.

Factors to be considered

(3) In making a determination under subsection (2), the judge or justice shall take into account the factors referred to in subsection 486.1(3).

Victim of criminal harassment

(4) In any proceedings in respect of an offence under section 264, on application of the prosecutor or the victim of the offence, the accused shall not personally cross-examine the victim unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.

Application

(4.1) An application referred to in subsection (1), (2) or (4) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings.

No adverse inference

(5) No adverse inference may be drawn from the fact that counsel is, or is not, appointed under this section.

Order restricting publication – sexual offences

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

Child pornography

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

Limitation

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

Order restricting publication – victims and witnesses

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

Justice system participants

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

Limitation

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

Application and notice

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

Grounds

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

Hearing may be held

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

Factors to be considered

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

Conditions

(8) An order may be subject to any conditions that the judge or justice thinks fit.

Publication prohibited

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.

Offence

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Application of order

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

R.S., c. 27 (1st Supp.), s. 69

16. (1) The portion of subsection 487.2(1) of the Act before paragraph (a) is replaced by the following:

Restriction on publication

487.2 If a search warrant is issued under section 487 or 487.1 or a search is made under such a warrant, every one who publishes in any document, or broadcasts or transmits in any way, any information with respect to

R.S., c. 27 (1st Supp.), s. 69

(2) Subsection 487.2(2) of the Act is repealed.

17. (1) The portion of subsection 517(1) of the Act before paragraph (a) is replaced by the following:

Order directing matters not to be published for specified period

517. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as
Ordonnance de non-publication

(2) Subsection 517(3) of the Act is repealed.

R.S., c. 27 (1st Supp.), s. 97

18. (1) The portion of subsection 539(1) of the Act after paragraph (b) is replaced by the following:

L.R., ch. 27 (1er suppl.), art. 97

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(2) Subsection 539(4) of the Act is repealed.

19. (1) The portion of subsection 542(2) of the Act before paragraph (a) is replaced by the following:
:

Restriction of publication of reports of preliminary inquiry

(2) Every one who publishes in any document, or broadcasts or transmits in any way, a report that any admission or confession was tendered in evidence at a preliminary inquiry or a report of the nature of such admission or confession so tendered in evidence unless

(2) Subsection 542(3) of the Act is repealed.

20. Subsection 631(6) of the Act is replaced by the following:

Ban on publication

(6) On application by the prosecutor or on its own motion, the court or judge before which a jury trial is to be held may, if an order under subsection (3.1) has been made, make an order directing that the identity of a juror or any information that could disclose their identity shall not be published in any document or broadcast or transmitted in any way if the court or judge is satisfied that such an order is necessary for the proper administration of justice.

21. (1) Subsection 648(1) of the Act is replaced by the following:

Restriction on publication

648. (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Publication interdite

(2) Subsection 648(3) of the Act is repealed.

22. The portion of subsection 672.51(11) of the Act before paragraph (a) is replaced by the following:

Prohibition on publication

(11) No person shall publish in any document or broadcast or transmit in any way

R.S., c. 19 (3rd Supp.), s. 16; 1997, c. 16, s. 7; 1998, c. 9, s. 8

23. The heading before section 715.1 and sections 715.1 and 715.2 of the Act are replaced by the following

Video-recorded Evidence

Evidence of victim or witness under 18

715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

Order prohibiting use

(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).

Evidence of victim or witness who has a disability

715.2 (1) In any proceeding against an accused in which a victim or other witness is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

Order prohibiting use

(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).

24. The Act is amended by adding the following after section 718:

Objectives – offences against children

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

25. Subparagraph 718.2(a)(ii) of the Act is replaced by the following:

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

R.S., c. C-5

CANADA EVIDENCE ACT

26. The portion of subsection 16(1) of the Canada Evidence Act before paragraph (a) is replaced by the following:

Witness whose capacity is in question

16. (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

27. The Act is amended by adding the following after section 16:

Person under fourteen years of age

16.1 (1) A person under fourteen years of age is presumed to have the capacity to testify.

No oath or solemn affirmation

(2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.

Evidence shall be received

(3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.

Burden as to capacity of witness

(4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.

Court inquiry

(5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.

Promise to tell truth

(6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.

Understanding of promise

(7) No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.

Effect

(8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.

REVIEW AND REPORT TO PARLIAMENT

Review

27.1 (1) Five years after this section comes into force, a committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for the purpose shall undertake a comprehensive review of this Act and its operation.

Report

(2) The committee shall submit a report on the review to Parliament, including a statement of any changes that it recommends, within six months after it undertakes the review or within any further time authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be.

COORDINATING AMENDMENT

28. If section 10 of this Act comes into force before the coming into force of any provision of the definition “offence” in section 183 of the Criminal Code, as enacted by section 108 of the Public Safety Act, 2002 (the “other Act”), then, on the coming into force of that section 10, paragraph (a) of the definition “offence” in section 183 of the Criminal Code, as enacted by section 108 of the other Act, is amended by adding the following after subparagraph (xxvii):

(xxvii.1) section 162 (voyeurism),

COMING INTO FORCE

Order in council

29. The provisions of this Act, other than section 28, come into force on a day or days to be fixed by order of the Governor in Council.

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